Banned Food Truck Sues Over Free-Speech Rights

Back in the late 1990s, the First Amendment watchers were riveted, or shall we say ribbited, by a case involving a bad-mannered amphibian.

A brewery wanted to sell beer called “Bad Frog” in New York that displayed a label depicting a frog making an obscene gesture with an unwebbed hand. But the state liquor authority rejected the label on the grounds that the logo would encourage “combative behavior.” The 2nd U.S. Circuit Court of Appeals in New York ruled in 1998 that the state violated the First Amendment rights of the brewery.

A new free-speech dispute similar to that case is now playing out in the state’s capitol. This time, the controversy concerns an Italian barbecue food truck that was banned from selling food outside New York’s statehouse because of the anti-Italian slur in its name, “Wandering Dago.”

The truck’s operators, Andrea Loguidice and Brandon Snooks, are both Italian and say the name they chose for their truck was a “playful reference” to their heritage.

On Monday, the couple sued New York in federal court in Albany, claiming that the state had no right to censor their commercial speech. A state agency denied their application because its name had been deemed offensive, according to court papers filed by the plaintiffs.

Ms. Loguidice and Mr. Snooks say Wandering Dago is their only source of income and that they counted on being able to park their truck at Albany’s Empire State Plaza, where thousands of state workers and lobbyists mill about and buy their lunches during warmer months. Wandering Dago was also expelled from the nearby Saratoga Race Course in July.

“This is not Iran where you have mullahs issuing a fatwa because somebody wrote something derogatory about Muhammad,” said George F. Carpinello, the food truck’s attorney. “We don’t live in a society that allows public officials to ban speech that they personally find to be offensive.”

A spokeswoman for the state agency that runs the lunchtime vendor program said they would not comment on pending litigation.

Federal courts have said commercial speech is protected by the First Amendment, as long as the speech concerns lawful activity and isn’t misleading. Courts also look at whether a speech restriction is advancing a “substantial” governmental interest.

“On one side of this debate are those, like Defendants, who believe that certain words should be forever banished from the public’s vocabulary. They seek to avoid offense by eternally policing the language,” wrote Mr. Carpinello in a court brief. “On the other side are those, like Wandering Dago, who argue that there is a role for re-appropriation, humor, and self-deprecation.”

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The Law Blog covers the legal arena’s hot cases, emerging trends and big personalities. It’s brought to you by lead writer Jacob Gershman with contributions from across The Wall Street Journal’s staff. Jacob comes here after more than half a decade covering the bare-knuckle politics of New York State. His inside-the-room reporting left him steeped in legal and regulatory issues that continue to grab headlines.

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